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Author Name Stephen Fishman
658 Pages  
Published date 2017
ISBN no. 978-1-58852-151-4
eBook ISBN no. 978-1-58852-310-5
Condition New
 
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Title
Acknowledgments
Chapter 1: Introduction to the Public Domain
§ 1.01 Public Domain Defined
[1] What It Means for a Work to Be in the Public Domain
[2] Contours of the Public Domain
[a] Works in the Public Domain in Their Entirety
[i] Works Whose Copyright Has Expired
[ii] Works Whose Copyright Protection Was Forfeited
[iii] Works Ineligible for Copyright Protection
[iv] Works Dedicated to the Public Domain
[b] Public Domain Elements of Copyrighted Works
[c] The Problem of Orphan Works
[3] Determining Whether a Work Is in the Public Domain
[4] Obtaining Access to Public Domain Works
[5] Why Have a Public Domain
§ 1.02 Assault on the Public Domain
[1] Legislative Shrinking of the Public Domain
[a] Extension of Copyright Terms
[b] Elimination of Copyright Formalities
[c] Restoration of Copyright in Foreign Public Domain Works
[d] DMCA
[2] Spurious Copyright Claims Over Public Domain Works
[3] Privatization of the Public Domain
[4] Defending the Public Domain
Chapter 2: Works Not Entitled to Copyright Protection
§ 2.01 Introduction
§ 2.02 Unfixed Works
[1] Requirements for Fixation
[a] Embodiment in a Copy or Phonorecord
[b] Under Authority of Author
[c] For More Than Transitory Duration
[d] Live Broadcasts
[2] Types of Unfixed Works
[a] Improvisational Performances
[b] Oral Communications
[c] Choreography
[d] Folklore
[e] Transitory Art
[3] State Law Protection for Unfixed Works
§ 2.03 Works Lacking Originality
[1] Independent Creation
[2] Minimal Creativity
[3] Presumption of Originality
§ 2.04 United States Government Works
[1] Works by Government Employees and Officers
[a] Officers and Employees
[b] Works Prepared in the Course of Official Duties
[2] Works Created by Independent Contractors
[a] Federal Acquisition Regulations
[b] Copyright Notice
[c] Copyrights Transferred to the United States Government
[d] Joint Works
[3] Special Rules
[a] United States Postal Service
[b] Smithsonian Institution
[c] National Institute of Standards and Technology
[d] Public Broadcasters
[4] Foreign Copyright Protection for United States Works
[5] Public Domain Notices on Government Works
[6] Private Works Containing United States Government Materials
§ 2.05 Works by State and Local Government Employees
§ 2.06 Foreign Government Works
§ 2.07 Laws and Court Decisions
[1] Federal Laws and Court Decisions
[2] State and Local Laws and Court Decisions
[a] State Copyright Claims in Statutes and Court Decisions
[b] State and Local Laws Based on Model Codes
[3] Foreign Laws and Court Decisions
[4] Copyrightable Materials Added to Laws and Decisions
[5] Quasi-Official Legal Documents
[6] Court Documents
§ 2.08 De Minimis Works
§ 2.09 Information that Is Common Property
§ 2.10 Blank Forms
§ 2.11 Useful Articles
[1] What Are Useful Articles
[2] Physically Separable Features Protectible
[3] Conceptually Separable Features Protectible
[a] Copyright Office Test
[b] Primary-Subsidiary Test
[c] Artistic Judgment Test
[d] Inextricably Intertwined Test
[e] Marketability Test
[f] Stand-Alone Test
[g] Ordinary-Observer Test
[4] Two Dimensional Representations of Useful Articles
[5] Digital Models of Useful Articles
[6] Patent and Trademark Protection for Useful Articles
§ 2.12 Building Designs
[1] Building Designs Created Before December 1, 1990
[2] Building Designs Created After December 1, 1990
[a] What Constitutes a Building
[b] Protectible Elements of Building Designs
[c] Building Designs Unconstructed Before December 1, 1990
[d] Photographing Permissible
§ 2.13 Clothing and Dress Designs
§ 2.14 Typeface Designs
§ 2.15 Recipes
§ 2.16 Sound Recordings Made Before February 15, 1972
[1] Recordings Created in the United States
[a] State Criminal Anti-Piracy Laws
[b] State Common Law Copyright and Unfair Competition Laws
[c] State Civil Statutes
[d] Term of State Protection for Sound Recordings
[2] Foreign Sound Recordings
[a] Recordings Made 1921-1972
[b] Recordings Made Before 1921
§ 2.17 Works Lacking Human Authorship
[1] Mechanical Processes or Random Selection
[2] Nature, Animals, or Plants
[3] Computer Generated Works
§ 2.18 Sporting Events
§ 2.19 Non-Freestanding Contributions to Joint Works of Authorship
§ 2.20 Nationally Ineligible Works
Chapter 3: Works Whose Copyright Protection Has Expired
§ 3.01 Introduction
§ 3.02 Copyright Term for Works Created 1978 and Later
[1] Basic Term: Life Plus Seventy Years
[2] Works Made for Hire, Pseudonymous and Anonymous Works
§ 3.03 Copyright Term for Works Created Before 1978
[1] Works First Published in the United States Before 1978
[a] Works Published Before 1923
[b] Works Published 1923-1963
[c] Works Published 1964-1977
[2] Works First Published Outside the United States Before 1978
[a] Works Published Abroad Before 1978 Without Copyright Notices
[b] Restoration of Copyright in Foreign Works
[i] Works Published Before 1923
[ii] Works Published 1923-1963
[iii] Works Published 1964-1977
[3] Unpublished Works Created Before 1978
[a] Unpublished Works by Authors Dead Over Seventy Years as of January 1, 2003
[b] Unpublished Works Enter the Public Domain Each Year
[c] Determining When Authors Died
[d] Unpublished Works for Hire, Pseudonymous and Anonymous Works
[e] Unpublished Pre-1978 Works Published Before 2003
[f] Unpublished Works Registered with the Copyright Office Before 1978
§ 3.04 Copyright Duration Charts
§ 3.05 Online Copyright Duration Calculators
Chapter 4: Copyright Forfeiture
§ 4.01 Introduction
§ 4.02 Works Published Without Valid Copyright Notice
[1] When Notice Is Required
[a] Published Works Only
[i] Works First Published Before 1978
[ii] Works Published January 1, 1978 Until March 1, 1989
[iii] Works Published March 1, 1989 and Later
[b] Works First Published Outside the United States
[i] Was Copyright Notice Required?
[ii] Was Copyright Restored?
[c] Sound Recordings
[d] Contributions to Collective Works
[e] Derivative Works
[2] Invalid Copyright Notices: Works Published Before 1978
[a] Lack of Copyright Symbol or Word
[b] No or Incorrect Year of First Publication
[i] New Editions and Derivative Works
[ii] Publication of Works that were Registered as Unpublished
[c] No or Incorrect Name of Copyright Owner
[i] Who is the “Copyright Proprietor”?
[ii] Form of Name
[iii] Is the Notice Invalid?
[d] Improper Location of Notice
[i] Books
[ii] Periodicals
[iii] Musical Works
[iv] Artworks, Photos, Graphics, Maps
[e] Repetitive Designs
[f] Dispersed Copyright Notices
[g] Other Grounds for Invalidating Notices
[3] Invalid Copyright Notices: Works Published After 1977 and Before March 1, 1989
[a] No Notice at All
[b] No Copyright Symbol or Word
[c] No or Wrong Year of Publication
[d] No Name of Copyright Owner
[e] Unreasonable Placement of Notice
[f] Lack of Special Notice for Works Including Government Works
[4] Excusing or Curing Omission of Notice
[a] Works Published Before 1978
[i] Notice Omitted by Accident or Mistake
[ii] Works Published by Licensees
[iii] Removal or Destruction of Notice
[b] Works Published 1978 Until March 1, 1989
[i] Only Small Number of Unnoticed Copies Distributed
[ii] Works Published by Licensees
[iii] Corrective Measures Taken to Cure Omission
[iv] Notice Removed Without Owner’s Permission
§ 4.03 Works Published 1923-1963 and Not Timely Renewed
[1] How Many Works Were Never Renewed
[2] Was the Renewal Legally Valid?
[a] Was the Renewal Timely Filed?
[i] Works Published 1923-1949
[ii] Works Published 1950-1977
[b] Was the Renewal Filed by the Proper Claimant?
[i] Author or Statutory Successors the Renewal Claimant
[ii] Copyright Owner the Renewal Claimant
§ 4.04 Works Not Complying with the Manufacturing Clause
[1] What Is the Manufacturing Clause?
[a] Ad Interim Copyright
[b] Universal Copyright Convention (U.C.C.)
[2] Are Works that Violated the Clause in the Public Domain?
§ 4.05 Copyright Forfeiture and Derivative Works
Chapter 5: Publication
§ 5.01 Overview of “Publication” Under the 1909 and 1976 Copyright Acts
§ 5.02 Publication Before 1978
[1] General Publication
[2] Limited Publication
[3] Public Performance
[4] Public Display
[5] Publication Problem Areas
[a] Publication Outside the United States
[b] Pre-1978 Sound Recordings
[c] Artwork and Graphics
[i] General Distribution of Copies of the Work
[ii] Public Display with Right to Copy
[iii] Unrestricted Sales of Artwork
[d] Films
[e] Film Soundtracks
[f] Television and Radio Programs
[g] Building Plans
[h] Placing Works in Libraries, Archives, or Public Files
[i] Choreography
[6] Registration of Unpublished Works
§ 5.03 Publication 1978 and Later
[1] Limited Publication
[2] Publication on the Internet
[3] Publication of Computer Software
§ 5.04 Publication of Derivative Works
§ 5.05 Publication Without Copyright Owner’s Consent
Chapter 6: Copyright Abandonment
§ 6.01 Introduction
[1] Effect of Copyright Abandonment
[2] Copyright Abandonment Versus Forfeiture
§ 6.02 The Nuts and Bolts of Copyright Abandonment
[1] Publication Without Copyright Notice
[a] Unnoticed Publication by Third Parties
[b] Unnoticed Publication After March 1, 1989
[2] Failure to Act Not Copyright Abandonment
[3] Limited Abandonment
[4] Terminating Copyright Abandonment
§ 6.03 Computer Software
[1] Free and Open Source Software
[2] Abandonware
§ 6.04 Open Content, Open Access and the Creative Commons
[1] Creative Commons Public Domain Dedication and Waiver of Rights
[2] Creative Commons Licenses
Chapter 7: Public Domain Elements in Copyrighted Works
§ 7.01 Introduction
§ 7.02 Ideas
[1] Drawing a Line Between Idea and Expression
[2] General Ideas and Creative Building Blocks
[a] General Ideas
[i] Plots and Themes in Fictional Works
[ii] Fictional Characters
[iii] Nonfiction Works
[iv] Visual Art and Photography
[v] Business Ideas
[vi] Games
[vii] Computer Software
[b] Creative Building Blocks
[i] Written Works
[ii] Visual Art and Photography
[iii] Music
[iv] Software
[v] Choreography and Pantomime
§ 7.03 Facts
[1] Hard Facts
[a] Data
[b] News, History, and Scientific Facts
[c] Quotations
[d] The Natural World
[2] Soft Facts
[a] Theories and Interpretations of Fact
[b] Price Estimates
[c] Fact vs. Opinion
[3] Fictional “Facts”
[a] Facts in Fiction
[b] Fiction in Factual Works
§ 7.04 Systems
[1] Materials Used to Implement Systems
[2] Computer Software
[3] Games
§ 7.05 The Merger and Scènes à Faire Doctrines
[1] Merger
[a] Are Merged Expressions in the Public Domain?
[i] Ideas or Facts That Can Be Expressed Only One Way
[ii] Ideas or Facts That Can Be Expressed in a Few Ways
[b] Merger as a Defense to Copyright Infringement
[c] Applying the Merger Doctrine
[i] Functional Works
[ii] Literary Works
[iii] Visual Art and Photography
[iv] Computer Software
[2] Scènes à Faire
[a] May Scènes à Faire Be Copied Verbatim?
[b] Scènes à Faire in Fiction
[i] Necessary Scenes
[ii] Stock Elements
[c] Scènes à Faire in Art and Applied Art
[d] Scènes à Faire in Photography
[e] Scènes à Faire in Computer Software
[f] Other Scènes à Faire
§ 7.06 Protectible Compilations of Unprotectible Elements
[1] Compilation Defined
[a] Compilations and Collective Works
[b] Compilations and Derivative Works
[c] Compilations as Databases
[2] When Compilations Are Protectible
[a] Independent Creation
[b] Minimal Creativity
[i] The Importance of Choice
[ii] The Conventional, Standard or Obvious Are Not Original
[iii] “All” Is Not a Selection
[iv] Mechanical Arrangements Are Not Creative
[v] Layout Is Not a Protectible Arrangement
[3] Thin Copyright Protection for Compilations
[4] Extracting Public Domain Material from Compilations
Chapter 8: Copyrights Restored from the Public Domain
§ 8.01 Introduction
[1] How Many Works Have Been Restored?
[2] GATT, TRIPs and URAA
[3] Copyright Restoration Is Constitutional
§ 8.02 Which Works Had Their Copyright Restored
[1] The Work Was an Original Work of Authorship
[2] Author a National or Domicile of an Eligible Country
[3] Work First Published in an Eligible Country
[4] Copyright in Source Country Unexpired
[5] Work in Public Domain for Specified Reasons
[6] Applicable United States Copyright Term Unexpired
[7] Copyright Restoration in the Ninth Circuit
[8] Alien Property Exception to Copyright Restoration
§ 8.03 Effective Date of Copyright Restoration
§ 8.04 Duration of Copyright Restoration
§ 8.05 Copyright Ownership of Restored Works
§ 8.06 Copyright Infringement of Restored Works
[1] Reliance Party Defined
[a] Parties Who Commit Continuing Infringing Acts
[b] Parties Who Made or Acquired Copies Before the Eligibility Deadline
[c] Successors and Assignees of Reliance Parties
[2] Infringement Suits Against Reliance Parties
[3] Derivative Works Created by Reliance Parties
[4] Does Restricting the Rights of Reliance Parties Violate the First Amendment?
[5] Immunity from Warranty and Related Liability
§ 8.07 Restoration of Canadian and Mexican Films Under NAFTA
Chapter 9: New Works Created from Public Domain Works
§ 9.01 Introduction
§ 9.02 Derivative Works Based on Public Domain Works
[1] Derivative Work Defined
[a] Only New Material Protectible
[b] New Material Must Be Original
[c] Preexisting Work Unaffected by Derivative Work Based on It
[d] Public Domain Derivatives Based on Copyrighted Preexisting Works
[e] Derivative Works Based on Restored Works
[2] Derivative Written Works
[a] Changes in Format or Presentation
[b] Scholarly Editions of Public Domain Works
[c] Digital Copies of Public Domain Writings
[d] Microfilms of Public Domain Writings
[3] Derivative Musical Compositions
[a] Arrangements of Public Domain Music
[b] New Editions of Public Domain Sheet Music and Musical Scores
[i] Exact Reproductions
[ii] Simple Corrections
[iii] Editorial and Critical Comments
[iv] Additional or Altered Fingering, Accents, Dynamics
[v] Additional Music
[vi] Abridgments
[vii] Changes Copyrightable in the Aggregate
[viii] Collective Work Authorship
[4] Art Reproductions
[a] Changes in Artistic Medium
[b] Photographs of Public Domain Art
[c] Digital Reproductions
[d] 3d Printing of Public Domain Art
§ 9.03 Collections of Public Domain Works
[1] Thin Copyright Protection for Collections
[2] Minimal Creativity Required
[3] De Minimis Collections
Chapter 10: The Public Domain Outside the United States
§ 10.01 Introduction
[1] International Copyright Treaties
[a] Berne Convention
[i] National Treatment
[ii] Basis of Protection
[iii] No Formalities
[iv] Minimum Protections
[b] Universal Copyright Convention
[c] WIPO Copyright Treaty (WCT)
[d] TRIPs Agreement
[e] Neighboring and Related Rights Conventions
[2] Comparing the United States and Foreign Public Domains
[a] Different Copyright Terms
[i] First Publication of Public Domain Works
[ii] Mandatory Payments for Use of Public Domain Works
[b] Works Whose Copyright Protection Was Forfeited
[c] Works Ineligible for Copyright Protection
[i] Government Publications
[ii] European Database Protection
[iii] Copyright for Typography
[iv] Copyrights After Digitization
[d] Works Dedicated to the Public Domain
[e] Public Domain Elements of Copyrighted Works
[f] Moral Rights
[g] Orphan Works
§ 10.02 Copyright Duration Outside the United States
[1] Berne Convention Minimum Requirements
[2] European Union Copyright Terms
[a] The Basic Copyright Terms
[i] Collective Works
[ii] Audiovisual Works
[iii] Photographs
[iv] Related Rights
[v] Previously Unpublished Works
[vi] Critical and Scientific Publications
[vii] Special Rules
[b] Restoration of Public Domain Works
[c] Wartime Extensions of Copyright Terms
[3] National Copyright Terms
[a] Canada
[i] Photographs
[ii] Films and Videos
[iii] Sound Recordings, Broadcasts and Performances
[iv] Canadian Government Works
[v] Unknown Authors
[vi] Posthumous Works
[b] China
[c] Japan
[d] Russia
§ 10.03 The Rule of the Shorter Term
[1] Exceptions to the Rule of the Shorter Term
[a] Countries that Do Not Apply or Limit the Rule
[i] Canada
[ii] United Kingdom
[iii] United States
[b] Impact of Prior Copyright Treaties on the Rule of the Shorter Term
[i] Protection for United States Works in Germany
[ii] Other Countries
[2] The Country of Origin and the Rule of the Shorter Term
Chapter 11: Researching Copyright Renewals
§ 11.01 Introduction
§ 11.02 Who Should Conduct the Search
[1] Searches by the Copyright Office
[2] Hiring a Private Search Firm
[3] Do-It-Yourself Copyright Renewal Searches
§ 11.03 Preliminary Information Needed for Search
[1] Works First Published Outside the United States
[2] Avoiding Searches for Republished Works
[3] Renewal Information from Publisher or Copyright Owner
§ 11.04 Renewal Searches for Works Published 1950-1963
§ 11.05 Renewal Searches for Works Published 1923-1949
[1] Online CCE Records
[2] Card Catalog Searches
[3] What Years to Search
[4] Conducting a Search
§ 11.06 Problems and Complications Researching Copyright Renewals
[1] Works First Published Outside the United States
[2] Works Created as Part of Larger Works
[3] Derivative Works
[a] Derivative Works Based on Public Domain Works
[b] Public Domain Derivatives Based On Copyrighted Works
[4] Collections of Public Domain Material
[5] Motion Pictures
[a] Motion Pictures Based on Preexisting Works
[b] Film Music
[c] Changing Titles
[d] Alterations of Public Domain Motion Pictures
§ 11.07 Legal Validity of the Renewal
Chapter 12: Researching Copyright Renewals
§ 12.01 Introduction
§ 12.02 Federal Law
[1] Trademark
[a] Trademark Overview
[i] Obtaining a Trademark
[ii] Types of Trademarks
[iii] What Can Serve as a Trademark
[iv] Trademark Symbols
[v] Rights of Trademark Owners
[vi] Trademark Duration
[b] Trademarks and Public Domain Works of Authorship
[i] No Right of Attribution of Public Domain Works
[ii] Identification of Author of Public Domain Work Permitted
[iii] Titles of Public Domain Works
[iv] Titles of Derivative Works Based on Public Domain Works
[v] Characters Portrayed in Public Domain Works
[c] Titles of Copyrighted Works as Trademarks
[i] Title of a Single Work
[ii] Series Titles
[iii] Likelihood of Confusion
[iv] Use of Disclaimers to Avoid Confusion
[d] Trademark Fair Use
[i] Noncommercial Uses
[ii] Descriptive Fair Use
[iii] Comparative Advertising
[iv] Nominative Fair Use
[2] Patents
[a] Utility Patents
[b] Design Patents
[3] Federal Privacy and Secrecy Laws
[a] Personal Records
[b] Law Enforcement Records
[c] Trade Secrets Disclosed to the Government
[d] National Security Information
[4] Freedom of Information Act
[5] Federal Trade Secrets Law
§ 12.03 State Law
[1] Overview of Federal Copyright Preemption of State Law
[a] Equivalent Rights
[b] Subject Matter of Copyright
[i] Unfixed Works
[ii] Pre-1972 Sound Recordings
[2] Contracts Governing Use of Public Domain Materials
[a] License Agreements
[b] Library User Agreements
[c] Copyright Preemption of Licenses of Public Domain Materials
[3] Contracts Regarding Idea Submissions
[b] Implied Contracts
[c] Copyright Preemption of Contracts for Ideas
[4] Right of Publicity
[a] Duration of Right of Publicity
[b] Copyright Preemption of Right of Publicity
[c] Limitations on the Right of Publicity
[i] Commercial Uses Only
[ii] Use of Author Names
[iii] Insignificant or Fleeting Use Exception
[5] Misappropriation, Conversion and Unjust Enrichment
[6] Trade Secrets
Index
 
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